Live & Touring

Ticketmaster, Live Nation, The Senate & The Feds: An Evolution May Come

With Tuesday’s Ticketmaster hearing before the Senate Judiciary Committee looming, Bill Werde steps into the fray with his thoughts on what’s ahead this week and in the year ahead for live event ticketing, Ticketmaster, and owner Live Nation.

by Bill Werde

A version of this essay appeared in his free, weekly Full Rate No Cap email. Werde is a former Billboard Editorial Director and Director of The Bandier Program for Music and the Entertainment Industries of the Newhouse School of Public Communications at Syracuse University.

[How to watch the Ticketmaster, Live Nation Senate Hearing]

Expect a lot of theater but not a lot of concrete action in 2023 from the Justice Department but perhaps a bit more from Congress.

The only development that would alter the Justice Department prospects meaningfully is if someone produces a smoking gun: clear, new evidence that Ticketmaster is threatening venues that they won’t get Live Nation acts if they don’t use the ticketing service. If that happens, anything is possible, including strong Justice Department action up to and including the unwinding of the merger. I am definitely not betting on that, though.

Tuesday AM we get the much-anticipated Senate hearing on the concert ticketing industry. I’m going to disappoint those wanting a pound of Ticketmaster flesh with my prediction, both for what this hearing will amount to, and the changes I’m expecting on these matters in 2023: evolution, not revolution.

If you’re hoping beyond hope that either Justice or Congress unwinds the Ticketmaster/Live Nation merger, I think you’re in for the sort of disappointment normally reserved for not getting Taylor tickets. The Justice Department is unlikely to succeed in reversing the previously approved merger, if they even have the stomach to want to, which remains entirely unclear. Frankly. while Biden’s agenda is to make business more competitive, the Justice Department has been losing like it’s their job when it comes to reigning in mergers. We’ve already written our magnum opus about the actual issues involved here and what would ideally happen if Congress wants to get involved. And Congress is where I think a little more action is likely. 

FRNC is being told that NiVA and its proponents could introduce something in the Senate as soon as February; potential bipartisan support from Senators Klobuchar and Cornyn should give the proposal some credibility and momentum. 

The biggest risk to sanity is the prospect that New Jersey Rep Bill Pascrell may re-introduce some form of his well-intentioned but ultimately very counterproductive BOSS act from 2019 in the House.  The biggest problem with the BOSS bill was that it proposed consumer protections in the form of a Federal ban on placing limits on resale. This may sound like a good idea in theory, but in practice, it’s almost singularly responsible for why we can’t stop scalpers. More on that below. But suffice it to say, the bill was so damaging, Pearl Jam took the time to write a letter to its sponsors, begging them not to proceed. And Pascrell had the hubris to publicly explain to Pearl Jam why he knew more about touring than they did. 

Here’s the core issues/claims, and why I think each of them will fail to lead to a major overhaul of Ticketmaster:

But competition has gotten worse since the merger! 

This is just untrue, both from a market share perspective (read the section halfway down on competition), and from the eye test. Ironically, Zach Bryan’s recently announced tour has gotten a lot of attention for only routing with venues that don’t use Ticketmaster–and that tour might offer some of the strongest evidence that competition has grown meaningfully since the merger. Back in 1995 when Pearl Jam famously tried to route a whole tour without Ticketmaster, they were met with logistical nightmares and cancellations. Today such a tour is obviously possible. Ticketmaster should send Mr. Bryan a nice Tom Cruise cake to express their gratitude.

But the fees! 

Unclutch your pearls and know this: most of those fees go to the venues, not to Ticketmaster. This is one opportunity for improvement that Congress could herald: transparency around fees and “all-in pricing,” or the notion that the first time you see a price for your ticket in queue, it includes all applicable taxes and fees, so there is no shock at check-out. Also, if Congress actualy wanted to create marketplace competition for ticketing, they could cap or even ban certain fees. Right now Ticketmaster basically uses those fees to pay venues handsomely for using Ticketmaster. Get rid of fees and presumably venues would simply choose whatever platform was best. 

But dynamic pricing!  And scalpers! And ticket prices! 

Unclutch your pearls, please. Almost none of this is determined by Ticketmaster. The artist determines if they want to use dynamic pricing. The artist sets the prices. And the artist can insist on using a combination of Verified Fan and Face Value Ticket Exchange to ensure that there is no scalping, as Pearl Jam succeeded in doing on their last tour. The only markets where Pearl Jam could not control this is in the markets where States have passed well-intentioned, but horribly misguided laws “protecting” consumers—laws that ban placing limits on resale. This is why, on every tour that has used this approach, you’ll see no marked-up tickets anywhere, and then suddenly in the states where this “consumer protection” exists, tickets will be selling for 5x and more of face value. If Congress ultimately does wade into these areas, they need to get this part right, or we are all going to spend countless hours and end up with a “solution’ that only empowers scalpers.

As for potential legislation: if the government really wants to help fans, there are plenty of ways they could. 

Bot laws should be tightened and enforced. And from my last essay on these issues: “Put caps on scalper pricing; the UK has done this (check the work by FanFair Alliance) and early results are promising. Make service fees transparent—let fans know who (the artist, the venue or the ticket seller) is taking what percentage of fees with each purchase. Mandate all-in pricing so that the advertised cost of a ticket doesn’t suddenly jump when it comes time to check-out. And more than anything, do NOT prevent artists from limiting resale. This will empower them to have the final word on ticket pricing.”

There are two accusations against Ticketmaster where, if factual evidence is presented, it would change my tune: Is Ticketmaster parent Live Nation strong-arming venues with the threat of losing Live Nation tours if venues do not support Ticketmaster? And is Ticketmaster directing tickets straight to their own secondary platforms or allowing/encouraging artists to do the same?

If either of these things are conclusively proven, it will provide enormous momentum and credible support for those trying to convince the justice department to unwind the merger. But unless and until that happens, you need to remember: being pissed off you didn’t get Taylor tickets does not constitute an anti-trust violation

Bonus: Great discussion here between New York Times music critic and music business reporter Jon Caramanica and Ben Sisario, about all of these issues. 

How to watch the Ticketmaster, Live Nation Senate Hearing

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